Citation Nr: 9806062
Decision Date: 02/27/98 Archive Date: 03/20/98
DOCKET NO. 97-13 551 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
ISSUE
Whether new and material evidence has been submitted to
reopen the veteran’s claim for service connection for low
back disability, and if so, whether the reopened claim should
be granted.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
The veteran served on active duty from February 1941 to
November 1945. This case came before the Board of Veterans'
Appeals (Board) on appeal of a December 1996 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Louis, Missouri.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran has contended, including at his personal hearing
at the RO in June 1997, that he injured his back in service,
that his back continues to bother him, and that the recent
statement from Dr. Toney is new and material evidence showing
a link between his service injury and his current back
disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has submitted new
and material evidence to reopen his claim for service
connection for low back disability. It is the further
decision of the Board that the preponderance of the evidence
supports the reopened claim.
FINDINGS OF FACT
1. Prior RO denials of service connection for back
disability, dated in January 1946, March 1947, and September
1948 and not timely appealed, were continued by the Board in
June 1985.
2. The evidence received since the June 1985 Board decision
includes evidence which is not cumulative or duplicative of
evidence previously of record and is sufficiently relevant
and probative to establish a reasonable possibility of a
different outcome.
3. The veteran’s low back disability originated in service.
CONCLUSIONS OF LAW
1. The veteran has submitted new and material evidence to
reopen his claim for service connection for low back
disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1997).
2. Low back disability was incurred in active duty.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R.
§ 3.303(d) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Entitlement to service connection for low back disability was
initially denied by an unappealed rating decision dated in
January 1946, and this action was continued by unappealed RO
actions in March 1947 and September 1948. A June 1985 Board
decision continued to deny entitlement to service connection
for back disability because the evidence added to the record
did not show that the veteran’s current back disability
originated in service. A claim that is denied by the Board
will be reopened if new and material evidence is submitted in
support thereof. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
To be "new and material," the evidence must be more than
merely cumulative; there must be a reasonable possibility
that the new evidence, when viewed in the context of all of
the evidence, would result in a different outcome than that
of the prior decision. Colvin v. Derwinski, 1 Vet.App. 171
(1991).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Evidence
received since the June 1985 Board decision includes a
November 1996 statement from Michael P. Toney, D.O., in which
he concludes that the veteran has low back disability,
including arthritis, which is the result of injuries that
occurred in service.
The evidence noted above is not cumulative or duplicative of
the evidence previously of record. Since the new evidence
indicates a link between the veteran’s current low back
disability and his military service, the Board finds that it
is new and material evidence. Therefore, the veteran's claim
for service connection for lumbar spine disability is
reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
Following a de novo review of the evidence as a whole, the
Board is satisfied that the preponderance of the evidence
supports the veteran’s reopened claim. In this regard, the
Board notes that service medical records confirm that the
veteran injured his back in service. The post-service
medical evidence documents treatment for back disability as
early as April 1948. The opinion of Dr. Toney linking the
veteran’s current back disability to service is based upon a
review of the veteran’s medical records and current
examination findings. Although the history reported by Dr.
Toney is not entirely consistent with the information
recorded in service medical records, the fact remains that
service medical records do show that the veteran sustained
back trauma. Finally, the Board notes that the record
contains no medical opinion which refutes the opinion of Dr.
Toney.
ORDER
The claim for service connection for low back disability is
reopened and granted.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals.
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